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South Carolina
Judicial Department
2009-UP-428 - Smith v. Wilbanks


In The Court of Appeals

Hazel Skelton Smith, Appellant,


Gina Wilbanks, Individually and as Personal Representative of the Estate of J.C. Smith, Jr., Respondent.

Appeal From Anderson County
Barry W. Knobel, Family Court Judge

Unpublished Opinion No. 2009-UP-428
Submitted June 1, 2009 – Filed September 8, 2009   


Michael S. Gambrell, of Greenville, for Appellant.

William Hood, of Anderson, for Respondent.

PER CURIAM: Hazel Skelton Smith appeals the family court's finding she failed to prove by the preponderance of the evidence that she and J.C. Smith, Jr. (Decedent), her deceased former husband, shared a common-law marriage after their divorce.  She maintains the couple's continued cohabitation, their purchase of adjoining burial plots, Decedent's leaving a life estate in his home to her, their sharing of household chores, and the community's recognition of their relationship were evidence of common-law marriage.  She also contends she is prejudiced by the failure of a substantial portion of her transcript to be transcribed.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities:

1. As to whether the family court erred in finding Smith failed to establish a marital relationship by the preponderance of the evidence: Richland Mem'l Hosp. v. English, 295 S.C. 511, 513, 369 S.E.2d 395, 396 (Ct. App. 1988) (stating the determination of the existence of a common-law marriage is a matter of law); Pittman v. Lowther, 363 S.C. 47, 50, 610 S.E.2d 479, 480 (2005) (providing that in law actions tried without a jury, the factual findings of the trial court are to be upheld if supported by any evidence);  Barker v. Baker, 330 S.C. 361, 370, 499 S.E.2d 503, 508 (Ct. App. 1998) (holding because the existence of a common-law marriage is a question of fact in an action sounding in law, this court is bound by the family court's factual findings, particularly credibility determinations); Callen v. Callen, 365 S.C. 618, 623, 620 S.E.2d 59, 62 (2005) ("The proponent of the alleged marriage has the burden of proving the elements by a preponderance of the evidence."); Johnson v. Johnson, 235 S.C. 542, 550, 112 S.E.2d 647, 651 (1960) (finding an essential element of a common-law marriage is a mutual agreement between the parties to assume the relationship of husband and wife); Callen, 365 S.C. at 624, 620 S.E.2d at 62 ("The fact finder is to look for mutual assent: the intent of each party to be married to the other and a mutual understanding of each party's intent."); Barker, 330 S.C. at 368-69, 499 S.E.2d at 507 ("[I]f a party claiming a common-law marriage presents proof of apparent[] matrimonial cohabitation and long-term social acceptance of the couple as married, a presumption arises that the couple entered into a common-law marriage, notwithstanding the absence of any proof of an express agreement to enter into a common-law marriage.  The presumption, however, in no way lessens the claimant's burden of proving a common-law marriage by the preponderance of the evidence. . . . Instead, the presumption simply designates the facts that, if proven to the satisfaction of the fact-finder, will be sufficient to establish a common-law marriage unless properly rebutted."); id. at 370, 499 S.E.2d at 508 ("The probate court's conclusion that [alleged husband] failed to prove the existence of a common-law marriage is inextricably intertwined with the court's determination of the credibility of the witnesses.  For this [c]ourt to determine that [he] in fact established long-term social acceptance of [alleged wife] and him as married would require us to reject the probate court's credibility findings, an action we cannot take in this case.").

2.  As to whether Smith is prejudiced by the failure of a portion of her transcript to be transcribed: State v. Ladson, 373 S.C. 320, 325, 644 S.E.2d 271, 274 (Ct. App. 2007) (holding a new trial is appropriate if an appellant establishes the incomplete nature of the transcript prevents the appellate court from conducting a meaningful appellate review); id. at 324-25, 644 S.E.2d at 273 ("Most jurisdictions require an appellant to demonstrate specific prejudice flowing from an incomplete or reconstructed record. . . . We believe our supreme court would follow a rule requiring the party challenging a reconstructed record on appeal to demonstrate prejudice flowing from an inadequate record."); Sweat v. Crawford, 292 S.C. 324, 327, 356 S.E.2d 147, 149 (Ct. App. 1987) (finding omissions from the record did not prejudice appellant because the evidence included in the record sufficiently supported the findings of fact made by the referee and concurred in by the circuit court).


HEARN, C.J., and THOMAS and KONDUROS, JJ., concur.

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.